Abrahams v. Young & Rubicam, CIV. 5:91cv688 (PCD).

• Decision Date: 17 September 1997
• Docket Number: No. CIV. 5:91cv688 (PCD).,CIV. 5:91cv688 (PCD).
• Citation: Abrahams v. Young & Rubicam, 979 F.Supp. 122 (D. Conn. 1997)
• Court: U.S. District Court — District of Connecticut
• Parties: Eric Anthony ABRAHAMS, Plaintiff, v. YOUNG & RUBICAM, et al., Defendants.

979 F.Supp. 122

Eric Anthony ABRAHAMS, Plaintiff, v. YOUNG & RUBICAM, et al., Defendants.

No. CIV. 5:91cv688 (PCD).

United States District Court, D. Connecticut.

September 17, 1997.

Heather Michelle Brown, Darien, CT, Ridgely W. Brown, Brown & Brown, Darien, CT, Robert P. Herzog, New York City, for Plaintiff.

Thomas Barr, Frances M. Lynch, Stephen S. Madsen, Cravath, Swaine & Moore, New York City, Steven David Ecker, Cowdery & Ecker, Hartford, CT, for Defendants, Young & Rubicam, Inc., Arthur Klein, Thomas Spagenberg, Steven M. McKenna, and Mike Slosberg.

Robert Lowell Moore, Concord, MA, pro se.

RULING ON MOTION FOR JUDGMENT ON THE PLEADINGS

DORSEY, Chief Judge.

Defendants Young & Rubicam, Inc. ("Y & R"), Arthur Klein ("Klein"), Thomas Spangenberg ("Spangenberg"), Steven M. McKenna ("McKenna"), Mike Slosberg ("Slosberg"), Edward Ney ("Ney") and Alex Kroll ("Kroll") move for judgment on the pleadings dismissing Plaintiff Eric Anthony's ("Plaintiff") negligence claims. Y & R, Spangenberg and Edward J. Daley ("Daley") move for judgment on the pleadings dismissing Plaintiff's remaining defamation claims.¹ For the following reasons, the motion is GRANTED.

I. BACKGROUND

The following facts from the complaint are assumed to be true for purposes of this motion. This case arises from a criminal prosecution initiated almost eight years ago. Plaintiff is the former Minister of Tourism and Information for the Government of Jamaica. Plaintiff also had a private consulting business. Y & R is an American advertising firm, which entered into a scheme to bribe Plaintiff to obtain the Jamaican Tourist Board ("JTB") advertising account. Arnold Foote, a Jamaican, and Robert Moore, an American writer, held themselves out to Y & R as consultants to the Jamaican government and convinced Y & R to pay them money, which they claimed they would pay to Plaintiff to secure the JTB account. Y & R paid Moore and Foote almost one million dollars, none of which was ever paid to Plaintiff. Plaintiff was not involved in the bribery scheme; Moore and Foote kept all the money for themselves.

Y & R and Plaintiff (as well as others) were indicted on October 6, 1989. It was not until he was indicted that Plaintiff learned of the bribery scheme. Y & R pleaded guilty under the Foreign Corrupt Practices Act, 15 U.S.C. § 78dd-2, to one count of conspiracy to bribe foreign officials. During the plea, Y & R admitted that there was no evidence that they knew of that any money actually went to Plaintiff. The charges against the remaining defendants, including Plaintiff, were subsequently dropped.

Plaintiff then brought a civil action under the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., the Connecticut Unfair Trade Practices Act ("CUTPA"), Conn. Gen.Stat. § 42-110a et seq., and the common law for intentional infliction of emotional distress, negligence, negligent infliction of emotional distress and defamation. He sought damages for injuries to his reputation and to his emotional, financial, political and social status caused by the public dissemination of false information about his alleged part in the bribery scheme. He also sought damages for loss to his consulting business, as well as other business interests.

Plaintiff's RICO and CUTPA claims were dismissed due to a lack of causation between the alleged wrongful conduct and Plaintiff's injuries. Similarly, Plaintiff's negligent and intentional infliction of emotional distress claims and common law negligence claim were dismissed for Plaintiff's failure to adequately allege causation. The defamation claims were dismissed because the claims were based on privileged and unpublished communications.² Plaintiff appealed that decision.

The Second Circuit Court of Appeals affirmed the dismissal of Plaintiff RICO claim and intentional infliction of emotional distress claim, severed the CUTPA claim and certified it to the Connecticut Supreme Court, and reversed the dismissal of Plaintiff's negligence and defamation claims.

II. DISCUSSION

A. Standard of Review

Fed.R.Civ.P. 12(c) allows a party to move for judgment on the pleadings "[a]fter the pleadings are closed but within such time as not to delay the trial...." On a motion for judgment on the pleadings, "the same standards that are employed for dismissing a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6) are applicable...." Ad-Hoc Comm. v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir.1987) (citations omitted). In considering the motion, all of plaintiff's "well pleaded factual allegations ... are assumed to be true and all contravening assertions in the movant's pleadings are taken to be false." 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1368, at 520 (2d ed.1990); see, e.g., Fine v. City of New York, 529 F.2d 70, 75 (2d Cir.1975). A 12(c) motion will not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

B. Negligence Claims

Defendants move to dismiss Plaintiff's negligence claims on the ground that those claims arise from Defendants' negligent provision of information to law enforcement authorities, which Defendants submit cannot support a negligence claim.

Plaintiff's negligence claims were originally dismissed on the basis that: (1) Defendants' illegal acts were not the proximate cause of Plaintiff injuries; and (2) the decision to indict by the United States Attorney cannot be the subject of a negligence claim. Abrahams v. Young & Rubicam, Inc., 793 F.Supp. 404, 407 (D.Conn.1992), aff'd in part, rev'd in part, 79 F.3d 234 (2d Cir.1996). The parties dispute the meaning of the Second Circuit decision reversing the dismissal of these claims. Plaintiff asserts that the court of appeals expressly found that he stated a cognizable claim for negligence in his complaint and, therefore, the adequacy of that claim cannot be revisited here. Plaintiff's Objection to Defendants' Rule 12(c) Motion on the Pleadings ("Pl. Obj."), p. 3. Defendants' contend that the court of appeals left open two issues for resolution here: (1) whether the indictment was "`an intervening force relieving appellees of their responsibility;'" and (2) whether "`as a matter of law a private party cannot be held liable for damages resulting from a negligently caused indictment.'" Reply Memorandum of the Y & R Defendants in Support of their Motion for Judgment on the Pleadings ("Def. Reply"), p. 3 (citing Abrahams v. Young & Rubicam, 79 F.3d 234, 240 (2d Cir.1996)).

Although the court of appeals found that it was "unable to say that Abrahams c[ould] prove no set of facts based on his complaint that would entitle him to relief on his negligence claim," Abrahams, 79 F.3d at 239, it does not appear that the circuit court conclusively ruled that Plaintiff had stated a valid cause of action for negligence. Instead, in reversing the court of appeals held that the determination that Plaintiff failed to state a claim under RICO was not dispositive of whether Plaintiff had sufficiently alleged causation in support of his common law negligence claims.³ The court criticized the use of "proximate cause" with respect to statutory claims, which turn not on the common law concept of foreseeability but instead, on whether "the plaintiff (even though foreseeably injured) [is] in the category the statute meant to protect, and was the harm that occurred (again, even if foreseeable), the `mischief,' the statute sought to avoid." Id. at 237 (citation omitted).

The court of appeals expressed its confusion regarding the basis upon which Plaintiff's negligence claims were dismissed Abrahams, 79 F.3d at 240. The court of appeals expressly left "development of these issues to further proceedings in the district court." Id. Accordingly, consideration of whether Plaintiff has stated a valid claim for negligence is proper.

1. Causation

Plaintiff's CUTPA claim, like his RICO and negligence claims, was dismissed because Plaintiff "failed to causally link the allegations of defendants' illegal activities, of which he allegedly knew nothing, with his alleged injuries." Abrahams, 793 F.Supp at 407. The Second Circuit severed Plaintiff's CUTPA claim and certified the following question to the Connecticut Supreme Court: "`[W]hether the [plaintiff's allegations], if proven, constitute `unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce' within the meaning of [General Statutes] § 42-110b, and whether [the plaintiff] is `[a] person who [has] suffer[ed][a] ... loss of money or property ... as a result of the use or employment of [such] a method, act, or practice' within the meaning of § 42-110g(a)?'" Abrahams v. Young & Rubicam, Inc., 240 Conn. 300, 303 n. 3, 692 A.2d 709 (1997) (citing certification order).

The Connecticut Supreme Court declined to address whether the alleged misconduct constitutes unfair or deceptive trade practices, finding that Plaintiff's injuries were not proximately caused by Defendants' wrongful conduct. The Connecticut Supreme Court assumed that Defendants' actions were prohibited by CUTPA but held that "this assumed violation was not the proximate cause of the injuries to the plaintiff's reputation and business:"

"In this case, Young & Rubicam's bribery scheme did not, in and of itself, directly harm the plaintiff. The plaintiff has not alleged, nor can it be reasonably inferred from the plaintiff's allegations, that Young & Rubicam either intended or could have foreseen that, as a result of its attempt to bribe the plaintiff, he would be injured by an erroneous indictment for bribery or by publication of the incorrect accusations therein.

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Rather, the proximate cause of the plaintiff's injuries was the confession that Young &...